In re: Warren Lee Hill, Jr.

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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 15-10192

________________________

D.C. Docket Number. 04-00151-cv-WLS

In re: WARREN LEE HILL, JR.,

Petitioner.

________________________

Application for Leave to File a Second or

Successive Habeas Corpus Petition, 28 U.S.C. Section 2244(b),

by a Prisoner in State Custody

________________________

Before: HULL, MARCUS and MARTIN, Circuit Judges.

PER CURIAM:

The State has scheduled Warren Lee Hill, Jr.’s execution for Tuesday, January 27, 2015

at 7:00 p.m. On January 15, 2015, and pursuant to 28 U.S.C. § 2244(b), petitioner Hill filed this

second, counseled application for permission to file a second or successive federal petition for a

writ of habeas corpus under 28 U.S.C. § 2254 in the district court. On January 16, 2015, the

State filed a response opposing petitioner Hill’s successive application on numerous grounds.

Because over the past 20 years petitioner Hill has filed four counseled state habeas cases and

three counseled federal habeas cases, we first review just some of the lengthy factual and

procedural background before discussing his current application.

I. PROCEDURAL HISTORY

A. Malice Murder Conviction and Unanimous Death Sentence

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In 1990, while Hill was serving a life sentence for the murder of his girlfriend, he

murdered another person in prison. Using a nail-studded board, Hill bludgeoned a fellow inmate

to death in his bed. As his victim slept, “Hill removed a two-by-six board that served as a sink

leg in the prison bathroom and forcefully beat the victim numerous times with the board about

the head and chest as onlooking prisoners pleaded with him to stop.” Head v. Hill, 277 Ga. 255,

256, 587 S.E.2d 613, 618 (Ga. 2003) (“Hill III”). 1 Hill “mocked the victim as he beat him.” Id.

A jury unanimously convicted Hill of malice murder and unanimously imposed a death

sentence. The Georgia Supreme Court affirmed Hill’s conviction and death sentence. Hill v.

State, 263 Ga. 37, 37, 427 S.E.2d 770, 772 (Ga. 1993) (“Hill I”). The U.S. Supreme Court

denied Hill’s petition for certiorari. Hill v. Georgia, 510 U.S. 950, 114 S. Ct. 396 (1993).

B. No Intellectual Disability Claim at Trial or on Direct Appeal

Hill’s current successive application centers on his allegation that he is intellectually

disabled. 2 At the time of Hill’s 1991 trial, Georgia law prohibited executing intellectually

disabled defendants. 3 Yet, at his trial and on direct appeal, Hill never claimed to be intellectually

disabled. Indeed, Hill’s trial counsel had Hill evaluated by a clinical psychologist expert who

1

We have numbered Hill’s state cases in their chronological order.

2

This order employs the terms “intellectually disabled” and “intellectual disability”

because, as the Supreme Court stated in Hall v. Florida, both law and medicine have moved

away from the terms “mental retardation” and “mentally retarded.” 572 U.S. ___, ___, 134 S.

Ct. 1986, 1990 (2014). Thus, while in the past Hill’s pleadings used the term “mentally

retarded,” he now uses the term “intellectually disabled,” and we do too in addressing his claim.

3

In 1988, Georgia became the first state in the nation to abolish the execution of

intellectually disabled persons. See O.C.G.A. § 17-7-131(c)(3), (j). The national consensus

against executing the intellectually disabled that gave birth to the Atkins v. Virginia, 536 U.S.

304, 122 S. Ct. 2242 (2002), prohibition in 2002 was a consensus that Georgia started by

enacting the very same statute—§ 17-7-131(c)(3), (j)—that petitioner Hill now claims violates

Atkins and Hall. See Atkins, 536 U.S. at 313-14, 122 S. Ct. at 2248.

2

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found Hill was not intellectually disabled. Hill v. Humphrey, 662 F.3d 1335, 1340 (11th Cir.

2011) (en banc), cert. denied, 566 U.S. ___, 132 S. Ct. 2727 (2012).

In 1994, Hill filed his first, counseled state habeas case but did not claim he was

intellectually disabled. It was only in 1996, or five years after his 1991 trial, that Hill claimed,

for the first time, he was intellectually disabled. As explained in the procedural history below,

over the course of nearly 20 years, Hill has fully litigated his intellectual disability claims in

numerous proceedings in both state and federal court. Here are just a few examples of why his

claims have been repeatedly denied.

C. 1996-2003 State Habeas Proceedings

After conducting an evidentiary hearing and after a remand by the Georgia Supreme

Court, the state habeas court in 2002 determined that Hill’s evidence failed to prove he was

intellectually disabled beyond a reasonable doubt as required by Georgia law to bar his

execution. See O.C.G.A. § 17-7-131(c)(3), (j). The state habeas court employed the definition

of mental retardation in O.C.G.A. § 17-7-131(a)(3), which provides that “mentally retarded”

means (1) having “significantly subaverage general intellectual functioning,” (2) “resulting in or

associated with impairments in adaptive behavior,” (3) “which manifested during the

developmental period.” Georgia’s definition essentially tracks the clinical definitions mentioned

by the Supreme Court in Atkins v. Virginia, 536 U.S. 304, 308 n.3, 122 S. Ct. 2242, 2245 n.3

(2002). As explained later, Georgia’s definition does not have Florida’s strict IQ cut-off of 70

that was at issue in Hall v. Florida, 572 U.S. ___, 134 S. Ct. 1986 (2014), and that precluded

defendant Hall from presenting any adaptive-behavior or other evidence as to intellectual

disability. See Hall, 572 U.S. at ___, ___, 134 S. Ct. at 1992, 1994. In this case, however, both

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Hill and the State presented evidence of his adaptive behavior and other evidence in various

courts.

The state habeas court found Hill established the first prong of “significantly subaverage

general intellectual functioning.” Hill III, 277 Ga. at 255, 587 S.E.2d at 617-18. The court did

not find an exact IQ score, but multiple tests had placed Hill’s IQ score at between 69 and 77. In

re Hill, 715 F.3d 284, 286 & n.1 (11th Cir. 2013) (collecting various IQ scores from tests

administered at different times).

As to the second prong, however, the state habeas court found that Hill had not shown

that he had “impairments in adaptive behavior” beyond a reasonable doubt. Hill III, 277 Ga. at

255, 587 S.E.2d at 618. Hill’s case has always been about his adaptive behavior, not his IQ

scores. Based on the evidence presented by Hill and the State, the state habeas court found Hill

did not have impairments in “communication, self-care, home living, social/interpersonal skills,

use of community resources, self direction, functional academic skills, work, leisure, health, and

safety.” Hill, 662 F.3d at 1341; In re Hill, 715 F.3d at 286. Specifically, “[t]he court noted

Hill’s (1) extensive work history and ‘apparent ability to function well in such employment,’ (2)

disciplined savings plans pursued to purchase cars and motorcycles, (3) military service, (4)

active social life, (5) writing skills, and (6) ability to care for himself.” In re Hill, 715 F.3d at

286. Because Hill failed to establish the second prong, the state habeas court did not discuss the

third prong, which is onset before age 18.

Among the evidence before the state habeas court was Hill’s military record, showing his

five promotions, his successful courses in military education, instruction training and leadership

management, and his excellent oral and written English language skills, as follows:

He entered the military at the rank E–1 and, advancing each year, attained the

rank of E–5 in five years. Hill was decorated as a .38 caliber sharpshooter. He

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received military education in nuclear weapons loading, aviation fund school, and

corrosion control. He completed an 80–hour instructor training course. Hill also

attended and completed a 2–week military course in leadership management

education and training. He was qualified as an assistant supervisor and ordnance

systems maintenance man and troubleshooter, with collateral duties in shop

training, as a publications petty officer, as a nuclear conventional weapons load

team member, and as a corrosion control/reclamation and salvage team member.

Hill was qualified as a weapons technician and was a Human Relations council

member. He completed a 2–week tour with a hometown recruiting program,

played on the football team, and was Petty Officer of the Watch. Hill also

functioned as an assistant work center supervisor, an ordnance troubleshooter,

was CPR qualified, and played on an intramural basketball team.

Evaluations of Hill during his military duty contain these descriptions of

him:

Dedicated and reliable petty officer. Completes all tasks

expeditiously, at times under very adverse conditions. Quiet,

friendly manner, and positive attitude greatly enhances squadron

morale. Uniforms and appearance always outstanding. Actively

supports the Navy’s equal opportunity goals. Good use of the

English language orally and written. Strongly recommended for

advancement and retention.

Similarly, Hill was reported to be:

[a] reliable individual and devoted second class petty officer.

Works exceptionally well with others and assists in the training of

weapons-loading team members. Implemented a new W/C tool

control program and aided in the redesigning of the W/C technical

Pubs library, both areas receiving an outstanding during the latest

COMHEL WINGGRES visit. His quiet personality enhances

squadron morale. Uniforms and appearance continually

outstanding. Actively supports the Navy’s equal opportunity

goals. Demonstrates excellent command of the English language

orally and written. Strongly recommended for advancement and

retention in the Naval service.

In re Hill, 715 F.3d at 286-87 (footnote omitted). Hill was eligible for an E–6 promotion in the

military; however, he was demoted not because of any mental inability, but because he murdered

his girlfriend. Id. at 286 n.4.

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These are just some examples of the plethora of evidence before the state habeas court

and the Georgia Supreme Court. Ultimately, the state habeas court and then the Georgia

Supreme Court in 2003 concluded that Hill had not shown the required impairments in adaptive

behavior and thus had not established his intellectual disability beyond a reasonable doubt as

required by Georgia law. Hill III, 277 Ga. at 260-63, 587 S.E.2d at 620-23. The Georgia

Supreme Court also concluded in 2003 that Georgia’s beyond-a-reasonable-doubt standard was

not unconstitutional under Atkins. Hill III, 277 Ga. at 262, 587 S.E.2d at 622.

D. First Federal 28 U.S.C. § 2254 Petition—Filed October 5, 2004

Hill then filed a § 2254 petition asserting that he was “mentally retarded, and his

execution would violate the Eighth and Fourteenth Amendments to the United States

Constitution.” Under that heading, Hill raised subclaims, including arguments that Georgia’s

beyond-a-reasonable-doubt standard violated the Eighth and Fourteenth Amendments and

Atkins. In 2007, the district court denied Hill’s § 2254 petition, but issued a certificate of

appealability on the question of whether the Georgia Supreme Court’s decision to uphold the

beyond-a-reasonable-doubt standard was contrary to clearly established federal law as

announced in Atkins. Hill, 662 F.3d at 1342-43.

In 2011, this Court en banc affirmed the district court’s ruling denying Hill’s § 2254

petition. Hill, 662 F.3d at 1360-61. The en banc Court explained, under AEDPA, 4 “our review

of a final state habeas decision is greatly circumscribed and is highly deferential to the state

courts.” Id. at 1343 (quotations omitted). “Under 28 U.S.C. § 2254(d)(1), as amended by

AEDPA, a state prisoner cannot obtain federal habeas relief unless he can show the decision of

the state court ‘was contrary to, or involved an unreasonable application of, clearly established

4

Antiterrorism and Effective Death Penalty Act of 1996, codified in relevant part in 28

U.S.C. § 2254.

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Federal law . . . .” Id. (quoting 28 U.S.C. § 2254(d)(1)). In short, “AEDPA precludes a federal

court from imposing its will, invalidating that state statute as unconstitutional, and granting

federal habeas relief in the absence of ‘clearly established’ federal law, which the United States

Supreme Court admonishes is a holding of that Court.” Id. at 1360.

Based on the strict limitations on our federal review enacted by AEDPA, the en banc

Court concluded that there was no federal law or U.S. Supreme Court holding clearly

establishing that the “reasonable doubt burden of proof for claims of mental retardation violates

the Eighth Amendment.” Id. As such, the en banc Court held that Hill had failed to show that

the state courts’ rejection of his burden-of-proof claim involved an unreasonable application of

clearly established federal law, as required under § 2254(d). Id. at 1360-61. 5

The en banc Court emphasized that “[w]e do not hold, as one dissent charges, ‘that states

have complete discretion to choose any procedures to govern the determination of mental

retardation’” and that “[w]e decide only the issue before us, which concerns only the standard of

proof, and we hold only that the Georgia Supreme Court’s decision in Hill III [holding the

burden-of-proof statute was not unconstitutional] was not contrary to, and did not involve an

unreasonable application of, Atkins.” Hill, 662 F.3d at 1352 n.19. The en banc Court never said

states have limitless authority or unfettered discretion to choose procedural rules. Rather, the en

banc Court narrowly held only that Hill had not shown the Georgia Supreme Court decision was

contrary to or an unreasonable application of clearly established federal law at the time of Hill’s

case. Id. at 1347-61.

5

While petitioner Hill focuses on solely the reasonable doubt standard in isolation, the en

banc Court reviewed in great detail the many procedural protections afforded under Georgia’s

statute and processes for a defendant asserting an intellectual disability claim. Hill, 662 F.3d at

1352-53.

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Petitioner Hill petitioned for a writ of certiorari on the alleged unconstitutionality of

Georgia’s burden of proof as to intellectual disability claims, relying on the Eighth Amendment

and Atkins. The U.S. Supreme Court thereafter denied his petition for writ of certiorari in June

2012. Hill v. Humphrey, 566 U.S. ___, 132 S. Ct. 2727 (2012).

E. Second State Habeas Petition—Filed July 18, 2012

On July 18, 2012, the day of his first scheduled execution, Hill filed a second state habeas

corpus petition, reasserting the same claim of intellectual disability and the same claim that

Georgia’s burden-of-proof standard is unconstitutional. See In re Hill, 715 F.3d at 288. The

state habeas court denied the claim, as did the Georgia Supreme Court on the ground that the

claim was barred by res judicata. Id. The U.S. Supreme Court denied certiorari. Hill v.

Humphrey, 568 U.S. ___, 133 S. Ct. 1324 (2013).

F. Third State Habeas Petition—Filed February 15, 2013

Hill filed his third state habeas petition on February 15, 2013, four days before his

rescheduled execution date on February 19, 2013. In re Hill, 715 F.3d at 288. This time, Hill

asserted that certain mental health experts (who had initially evaluated him in 2000) had now

altered in 2013 (13 years later) their prior 2000 conclusions about his mental capabilities (even

though none of the experts had seen Hill since their 2000 evaluations). Id. at 288-89 (outlining

the chronological history regarding these experts). On February 18, 2013, the state habeas court

denied Hill’s petition, finding that it was procedurally barred because it raised a claim that

already had been asserted twice before. Id. at 289. The state court also concluded that Hill’s

“new evidence” did not establish a miscarriage of justice that would allow him to overcome the

procedural bar. Id. The Georgia Supreme Court denied Hill’s application for a certificate of

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probable cause. Id. The U.S. Supreme Court denied certiorari. Hill v. Humphrey, 571 U.S. ___,

134 S. Ct. 115 (2013).

G. First Application to File Successive § 2254 Petition—Filed February 19, 2013

On February 19, 2013, just three hours before his third rescheduled execution, Hill filed

in this Court his first application to file a second or successive § 2254 petition. In re Hill, 715

F.3d at 288. Hill argued that certain mental health experts’ 2013 recanting of their 2000

assessments was new evidence establishing that he was intellectually disabled and his execution

would violate the Eighth Amendment and Atkins. See id. at 289-90, 292. This Court denied

Hill’s application, stating first that § 2244(b)(1) barred him from raising his proposed claim

because he already had raised it in his original § 2254 petition in 2004. Id. at 291.

Alternatively, this Court determined that Hill had failed to make a prima facie showing

under § 2244(b)(2)(B) because his new evidence related to his innocence of the death penalty

instead of his innocence “of the underlying offense.” Id. at 295-97, 299. Lastly, this Court

concluded that the pre-AEDPA “actual innocence of sentence” exception to filing a successive

habeas petition from Sawyer v. Whitley, 505 U.S. 333, 112 S. Ct. 2514 (1992), did not survive

the AEDPA. In re Hill, 715 F.3d at 299-301. Accordingly, because no grounds existed to allow

Hill to file a second or successive § 2254 petition, this Court denied his application. Id. at 301.

H. Original Proceeding in the U.S. Supreme Court—Filed May 22, 2013

In May 2013, Hill filed an original petition for a writ of habeas corpus in the Supreme

Court. In his petition, Hill cites Sawyer v. Whitley multiple times, claiming the Supreme Court

should not allow AEDPA’s restrictions in § 2244(b)(2) to bar a successive petition and habeas

relief but should accept the original petition and grant habeas relief, among other reasons, based

on the miscarriage-of-justice principle in Sawyer and Felker v. Turpin, 518 U.S. 651, 116 S. Ct.

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2333 (1996). Hill also argued as his underlying claim that Georgia’s burden of proof was

unconstitutional under Atkins.

The U.S. Supreme Court denied Hill’s original habeas petition in October 2013. In re

Hill, 571 U.S. ___, 134 S. Ct. 118 (2013).

I. Supreme Court’s Decision in Hall v. Florida—Issued May 27, 2014

On May 27, 2014, in Hall v. Florida, the Supreme Court held that a State cannot execute

a person whose IQ test score falls within the test’s margin of error unless he has been able to

present additional evidence of intellectual disability, including testimony regarding adaptive

deficits. 572 U.S. at ___, 134 S. Ct. at 2001. The Florida Supreme Court interpreted Fla. Stat.

§ 921.137 to provide that a prisoner sentenced to death was required to show an IQ test score of

70 or below before presenting any additional evidence of his intellectual disability. See Hall v.

State, 109 So.3d 704, 707-08 (Fla. 2012); Cherry v. State, 959 So.2d 702, 712-13 (Fla. 2007).

But Florida’s strict IQ score cut-off of 70 failed to take into account the standard error of the test.

In Hall, the Supreme Court struck down Florida’s strict cut-off of 70 as violating the Eighth

Amendment’s prohibition on cruel and unusual punishment on the ground that the rule

“misuse[d] IQ score on its own terms” in a way that risked the execution of those with

intellectual disabilities. 572 U.S. at ___, 134 S. Ct. at 2001.

Specifically, the Supreme Court in Hall noted evidence of accepted medical practice that

(1) an IQ test result, without reference to other evidence, was not conclusive evidence of

intellectual capacity; and (2) each IQ test had a standard error of measurement, such that a score

of 71 generally is considered to demonstrate, with 95 percent confidence, that the test-taker’s IQ

was between 66 and 76. Id. at ___, 134 S. Ct. at 1995-96.

J. Fourth State Habeas Petition Based on Hall—Filed August 29, 2014

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After the Supreme Court’s decision in Hall, petitioner Hill returned to the Georgia state

courts. Hill filed his fourth state petition for habeas corpus. In his fourth state petition, Hill

again argued that Georgia’s beyond-a-reasonable-doubt standard was unconstitutional but this

time Hill based his claims on both Hall and Atkins. The state habeas court dismissed his fourth

petition as procedurally barred. On January 20, 2015, the Georgia Supreme Court denied a

certificate of probable cause and also denied a stay of execution.

II. DISCUSSION

In the instant federal successive application, petitioner Hill seeks to raise a claim in a

successive § 2254 petition that he is innocent of the death penalty and ineligible for execution

because of the Supreme Court’s decision in Hall v. Florida. For starters, Georgia’s statute is

nothing like the Florida statute in Hall v. Florida, and Hill’s case is nothing like Hall’s. Rather,

the Georgia statute fully allowed adaptive-behavior evidence, and Hill had an evidentiary

hearing and presented adaptive-behavior evidence in state courts, as did the State.

In any event, to obtain permission to file a successive § 2254 petition, Hill must meet the

requirements of 28 U.S.C. § 2244(b). We outline those requirements.

A. Requirements of 28 U.S.C. § 2244(b)

Section 2244(b)(1) of Title 28 provides that “[a] claim presented in a second or

successive habeas corpus application under section 2254 that was presented in a prior application

shall be dismissed.” 28 U.S.C. § 2244(b)(1). Accordingly, in ruling on an application to file a

successive petition, we must make a threshold determination of whether the claim to be

presented in the second or successive petition was presented in the first petition. In re Hill, 715

F.3d at 291.

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Further, even where a claim was not presented in a prior federal petition, the claim must

satisfy the requirements of 28 U.S.C. § 2244(b)(2). Under that provision, we may grant the

district court authorization to consider a second or successive habeas petition only if:

(A) the applicant shows that the claim relies on a new rule of

constitutional law, made retroactive to cases on collateral review by the Supreme

Court, that was previously unavailable; or

(B)(i) the factual predicate for the claim could not have been discovered

previously through the exercise of due diligence; and

(ii) the facts underlying the claim, if proven and viewed in light of the

evidence as a whole, would be sufficient to establish by clear and convincing

evidence that, but for constitutional error, no reasonable factfinder would have

found the applicant guilty of the underlying offense.

28 U.S.C. § 2244(b)(2). “The court of appeals may authorize the filing of a second or successive

application only if it determines that the application makes a prima facie showing that the

application satisfies the requirements of this subsection.” Id. § 2244(b)(3)(C).

For the reasons explained below, we must conclude that Hill has failed to meet the

requirements of § 2244(b) with his proposed intellectual disability claim based on Hall v.

Florida.

B. Hill’s Intellectual Disability Claim is Not a “New” Claim for § 2244(b) Purposes

As a threshold matter, petitioner Hill is barred from raising his proposed intellectual

disability claim by § 2244(b)(1). In his first § 2254 petition back in 2004, Hill raised his

intellectual disability claim based on the Eighth Amendment. In re Hill, 715 F.3d at 287. In

support of this argument, Hill’s prior § 2254 petition raised numerous sub-claims, one of which

specifically asserted that Georgia’s beyond-a-reasonable-doubt standard was contrary to the

Supreme Court’s ruling in Atkins. Thus, the “the basic thrust or gravamen of [Hill’s] legal

argument” in his original § 2254 petition was that his death-penalty sentence violated the Eighth

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and Fourteenth Amendments as set forth in Atkins. See id. at 294 (quotation omitted). Hill’s

first federal habeas petition qualifies as a “prior application” for the purposes of § 2244(b)(1).

Id. at 291.

Further, in the instant application, petitioner Hill again argues that his execution would

violate the Eighth and Fourteenth Amendments, and the only difference from his previously

asserted claim is that he is now relying on the Supreme Court’s subsequent decision in Hall to

support his challenge to Georgia’s burden of proof. Accordingly, Hill’s purportedly new claim is

the same claim that he raised in his original § 2254 petition, albeit supported by a new legal

argument. See id. at 292. As we noted in In re Hill, “new legal arguments in support of a prior

claim are insufficient to create a new claim and avoid § 2244(b)(1)’s bar on successive

petitions.” Id. at 293. Hill cannot convert his previously asserted claim into a new claim merely

by coming forward with new legal arguments. Id. at 292. Again, Hill’s core claim has remained

exactly the same since his first state habeas petition—his execution would violate the Eighth and

Fourteenth Amendments, as guaranteed in Atkins. Id. at 285, 287-89, 291-92, 294. Therefore,

Hill’s current proposed claim is barred by § 2244(b)(1). See 28 U.S.C. § 2244(b)(1).

C. Hall v. Florida Is Not Retroactive

Even assuming that petitioner Hill’s proposed claim were not barred by § 2244(b)(1), our

binding panel precedent, In re Henry, forecloses his argument that Hall applies retroactively on

collateral review and entitles him to file a second or successive habeas petition. In re Henry, 757

F.3d 1151 (11th Cir. 2014).

In In re Henry, the petitioner filed a successive application based on the proposed claim

that, under Hall, his execution would violate the Constitution because he allegedly was

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intellectual disabled. Id. at 1153-54. This Court held, as an initial matter, that Hall did announce

a new rule of law within the meaning of § 2244(b)(2)(A). Id. at 1158-59.

This Court further held, however, that “the Supreme Court has not made the new rule

announced in Hall retroactive to cases on collateral review.” Id. at 1159. This Court first

reasoned that the Supreme Court had not explicitly made Hall retroactively applicable to cases

on collateral review. Id. We further noted that “[t]he Supreme Court has never held that a rule

requiring procedural protections for prisoners with IQ scores within the test’s standard of error

would be retroactive,” id. at 1161, and thus that no combination of “‘multiple holdings . . .

logically dictate[s] the retroactivity of the new rule.’” Id. at 1159-60 (quoting Tyler v. Cain, 533

U.S. 656, 668, 121 S. Ct. 2478, 2485 (2001) (O’Connor, J., concurring)). We also observed that

the principle announced in Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934 (1989)—“that any

rule placing a class of individuals beyond the state’s power to execute is retroactive”—did not

make Hall retroactive because “Hall merely provides new procedures for ensuring that States do

not execute members of an already protected group.” In re Henry, 757 F.3d at 1161. Thus, this

Court concluded that a claim based on Hall v. Florida “cannot meet the requirements set by

Congress [in § 2244(b)(2)(A)].” Id. at 1159.

This panel is bound by In re Henry, and therefore, we must reject petitioner Hill’s attempt

to rely on Hall v. Florida to bring a claim in second or successive habeas petition based on “a

new rule of constitutional law, made retroactive to cases on collateral review by the Supreme

Court, that was previously unavailable.” 28 U.S.C. § 2244(b)(2)(A).

We similarly reject petitioner Hill’s argument that we should not give binding

precedential effect to a prior panel decision in the context of applications to file second or

successive habeas petitions. This Court recently held, in In re Lambrix, that “a prior panel’s

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holding in a published three-judge order issued under § 2244(b) ‘is binding on all subsequent

panels unless and until it is overruled or undermined to the point of abrogation by the Supreme

Court or by this court sitting en banc.’” ___ F.3d ___, ___, 2015 WL 167685 at *4 (11th Cir.

Jan. 14, 2015) (quoting United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008)). Thus,

under In re Lambrix, this panel is bound by In re Henry’s holding that “the Supreme Court has

not made the new rule announced in Hall retroactive to cases on collateral review.” In re Henry,

757 F.3d at 1159. Accordingly, Hill’s proposed intellectual disability claim based on Hall v.

Florida cannot meet the requirements of § 2244(b)(2)(A).

D. Even If Hall v. Florida Were Retroactive, Hall v. Florida Is Materially Different

from this Case

Even assuming that the new rule announced in Hall is somehow made retroactive on

collateral review, this Court alternatively must deny petitioner Hill’s application on the ground

that Hall and its consideration of Florida’s strict IQ cut-off of 70 (that barred presenting any

other evidence) are materially different from the issue in this case concerning Georgia’s beyond-

a-reasonable-doubt standard for capital intellectual disability claims.

Hall involved the very specific facts of Florida’s interpretation of its definition of

intellectual disability. The U.S. Supreme Court in Hall explicitly stated that Florida’s “strict IQ

test score cutoff of 70 is the issue,” and that in Florida, “[i]f, from test scores, a prisoner is

deemed to have an IQ above 70, all further exploration of intellectual disability is foreclosed.”

Hall, 572 U.S. ___, ___, 134 S. Ct at 1990, 1994. Hall was about a strict IQ of 70 cut-off for the

substantive definition of intellectual disability. In contrast, in this case, Georgia’s definition of

intellectual disability is consistent with both Atkins and Hall. This case is not about Georgia’s

definition of intellectual disability but about the trial procedure of burden of proof.

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Put simply, Hill cannot make a prima facie showing, pursuant to § 2244(b)(3)(C), that his

application based on Hall satisfies the requirements of § 2244(b), which requires “a sufficient

showing of possible merit to warrant a fuller exploration by the district court.” In re Holladay,

331 F.3d 1169, 1173 (11th Cir. 2003) (quotation omitted).

Furthermore, the new rule announced in Hall—that a State cannot execute a person

whose IQ test score falls within the test’s margin of error unless he has been able to present

additional evidence of intellectual disability, including testimony regarding adaptive deficits—

simply has no bearing on Hill’s claim in this case. As noted above, Georgia’s test for intellectual

disability does not use a strict IQ-cutoff as the one in Hall did. Rather, Georgia law allows the

consideration of evidence regarding impairments in adaptive functioning. See O.C.G.A. § 17-7-

131(c)(3); Hill, 662 F.3d at 1353. Hill presented IQ, adaptive-behavior, and other evidence.

Hall thus does not help Hill even if Hall were retroactive.

Nor, more importantly, can Hall be applied broadly to undermine Georgia’s reasonable

doubt standard for intellectual disability claims. Hill argues that Georgia’s reasonable doubt

standard offends Hall because the reasonable doubt standard denies defendants like Hill a fair

opportunity to show that the Constitution prohibits their execution. Contrary to Hill’s argument,

while Hall concerned a state law that had a strict IQ of 70 cut-off that prevented a capital

defendant from presenting evidence of his intellectual disability, Hall, 572 U.S. at ___, 134 S. Ct.

at 2001, Georgia’s reasonable doubt standard has not in any way prevented Hill from presenting

adaptive-behavior evidence, or any other evidence, to support his claim of intellectual disability.

Hill presented such evidence at multiple times, as did the State. As this Court noted previously,

“[i]t is undisputed that Georgia’s statutory definition of mental retardation is consistent with the

clinical definitions cited in Atkins. . . . [T]his is not a case about the categorical exclusion of the

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mildly mentally retarded or any other group from the Atkins prohibition. Instead, it is about

Georgia’s procedure for determining who is mentally retarded . . . .” Hill, 662 F.3d at 1352.

Hill further argues that the reasonable doubt standard creates an unacceptable risk of

executing a person who suffers from a disability. But this argument is essentially identical to

one this Court has already rejected in our en banc decision in Hill, cf. Hill, 662 F.3d at 1354-56,

and this panel is now bound by that decision.

E. To the Extent that Hill Brings a Claim under § 2244(b)(2)(B), His Pure Sentencing

Claim Does Not Meet the Requirements of that Provision and His Sawyer Argument

Is Barred

In the present application, petitioner Hill repeatedly contends that he is “actually innocent

of the death penalty” because of his intellectual disability, and that Sawyer, 505 U.S. 333, 112 S.

Ct. 2514, provides such an equitable exception to the restriction on second or successive § 2254

petitions. As an initial matter, to the extent that Hill is proposing a claim under § 2244(b)(2)(B),

even assuming that he had newly discovered evidence of his intellectual disability, his claim of

actual innocence of his death sentence is not a showing that “no reasonable factfinder would

have found [him] guilty of the underlying offense.” 28 U.S.C. § 2244(b)(2)(B)(ii) (emphasis

added). Indeed, Hill’s attempt to raise such a claim is foreclosed both by the law-of-the-case

doctrine and the prior-panel-precedent rule, as we held in In re Hill that “federal law does not

authorize the filing of a successive application under § 2244(b)(2)(B) based on a sentencing

claim even in death cases.” In re Hill, 715 F.3d at 297.

Moreover, Hill’s argument that Sawyer provides an equitable exception to the restriction

on successive § 2254 petitions is similarly foreclosed. This Court held in both In re Hill and

Gilbert v. United States, 640 F.3d 1293 (11th Cir. 2011) (en banc), that the Sawyer actual-

innocence-of-the-death-penalty exception did not survive the AEDPA. In re Hill, 715 F.3d at

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299-301; Gilbert, 640 F.3d at 1322. Thus, Hill’s attempt to rely on Sawyer to avoid complying

with § 2244(b)’s statutory requirements is foreclosed both by the law of the case and prior panel

precedent. Lambrix, 2015 WL 167685 at *3-4.

F. Request to Certify

We recognize that, on the eve of his fourth rescheduled execution, petitioner Hill has

filed a request that this Court now certify several issues to the U.S. Supreme Court under 28

U.S.C. § 1254(2). The AEDPA states that “[t]he grant or denial of an authorization by a court of

appeals to file a second or successive application shall not be appealable and shall not be the

subject of a petition for rehearing or for a writ of certiorari.” 28 U.S.C. § 2244(b)(3)(E). We

need not decide whether the § 1254(2) certification avenue may be available because, in any

event, we decline to certify for several reasons.

The Supreme Court has discouraged the use of this certification procedure and has

accepted certified questions only four times in the last 60 years. See Iran Nat’l Airlines Corp. v.

Marschalk Co., 453 U.S. 919, 101 S. Ct. 3154 (1981); Moody v. Albemarle Paper Co., 417 U.S.

622, 94 S. Ct. 2513 (1974); United States v. Barnett, 376 U.S. 681, 84 S. Ct. 984 (1964); United

States v. Rice, 327 U.S. 742, 66 S. Ct. 835 (1946). The Supreme Court has admonished that the

certification procedure is proper only in “rare instances.” See Wisniewski v. United States, 353

U.S. 901, 902, 77 S. Ct. 633, 634 (1957). We have located no court of appeals that has ever

certified a question arising from proceedings on an application to file a successive § 2254

petition.

Additionally, Hill’s questions, which he wishes the Supreme Court to resolve because he

disagrees with this Court’s prior panel decisions, would be inappropriate questions for

certification. Further, as explained above, even if Hall were retroactively applied, it would not

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help Hill because Hall involved the substantive definition of intellectual disability and did not

involve the burden of proof. We disagree with the dissent’s description of Hall as “a paradigm

shift” and a “revolutionary thing.” Infra, at 21, 26-28 (Dissenting opinion of Martin, J.). As

outlined above, Hall narrowly invalidated Florida’s strict IQ cut-off of 70 that, as applied in

Hall’s case, wholly precluded defendant Hall from presenting adaptive-behavior and any other

evidence. There is nothing paradigmatic or revolutionary about Hall.

In the face of multiple and insurmountable procedural hurdles erected by AEDPA—

including that the instant habeas claim is exactly the same as the one we have already rejected,

that Hall v. Florida has not been made retroactive to cases on collateral review by the Supreme

Court, that even if Hall were retroactive, it could not help this petitioner, and finally that there

has been no showing that Hill is not guilty of the “underlying offense”—we decline to certify. 6

III. CONCLUSION

Accordingly, on the eve of Hill’s fourth rescheduled execution, and for all of these reasons,

and pursuant to § 2244(b), we DENY Hill’s January 15, 2015 application for leave to file a

successive § 2254 petition for writ of habeas corpus and DENY Hill’s request to certify

questions to the U.S. Supreme Court.

6

In addition, in many of Georgia’s post-Atkins death penalty cases, the U.S. Supreme

Court denied capital defendants’ certiorari petitions that made the same constitutional reasonable

doubt challenge that Hill makes here. See Hill, 662 F.3d at 1348 n.14 (collecting some of the

Georgia cases, including direct appeals). Thus, another avenue (certiorari petition on direct

appeal) exists to present the constitutional issue here in a way that is not constrained by AEDPA

deference in first § 2254 petitions (the requirement of clearly established federal law as shown

by a U.S. Supreme Court holding) and the other procedural bars applicable to applications for

successive § 2254 petitions, such as this one.

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MARTIN, Circuit Judge, dissenting:

Warren Hill continues to look for a way to challenge Georgia’s unique rule which puts

the burden on a death row inmate to prove his own intellectual disability beyond a reasonable

doubt. He now seeks to file a second or successive habeas corpus petition in federal court,

arguing that this Georgia standard unconstitutionally denied him “a fair opportunity to show that

the Constitution prohibits [his] execution” based on his intellectual disability. Hall v. Florida,

572 U.S. ___, ___, 134 S. Ct. 1986, 2001 (2014).

As the majority explains, the precedent in the Eleventh Circuit erects formidable barriers

to his efforts. I have, in the past, expressed disagreement with some of our precedent which

impedes him. See, e.g., In re Henry, 757 F.3d 1151, 1168–69 (11th Cir. 2014) (Martin, J.,

dissenting) (disagreeing with the majority’s conclusion that Hall is not retroactive); Hill v

Humphrey, 662 F.3d 1335, 1381–86 (11th Cir. 2011) (en banc) (Martin, J., dissenting)

(concluding, among other things, that “Georgia’s requirement that a capital defendant prove his

[intellectual disability] beyond a reasonable doubt would seem inevitably to enhance the risk of

unwarranted imposition of the death sentence upon those who are [intellectually disabled]”

(quotation marks omitted)); id. at 1365–78 (Barkett, J., dissenting, joined by Marcus and Martin,

JJ.); id. at 1378–81 (Wilson, J., dissenting, joined by Martin, J.). I also fully agree with the

dissenting opinion written by Judge Barkett when she earlier served as a member of the panel for

Mr. Hill’s case. In re Hill, 715 F.3d 284, 302 (11th Cir. 2013) (Barkett, J., dissenting) (“When

Hill has proffered uncontroverted evidence of his [intellectual disability], I cannot agree that we

have no choice but to execute him anyway because his claim does not fit neatly into the narrow

procedural confines delimited by AEDPA.” (quotation omitted)). My views are not shared by

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the majority of judges on this Court, however, and I am bound by this Court’s rulings to the

contrary.

I also recognize that the process by which Mr. Hill asks this court to certify a question to

the United States Supreme Court is not encouraged by the Supreme Court and is hardly ever

used. But because Mr. Hill’s case presents such important questions, and because the answers

the Eleventh Circuit has given to these questions are not otherwise subject to review under 28

U.S.C. § 2244, I would certify two questions to the Supreme Court. Specifically, I would certify

these questions: (1) whether the miscarriage of justice exception described in Sawyer v. Whitley,

505 U.S. 333, 112 S. Ct. 2514 (1992), 1 survived the enactment of AEDPA and therefore allows

Mr. Hill to bring his claim that he is actually innocent of the death penalty in a successive habeas

petition; and (2) whether Hall applies retroactively to cases on collateral review. The first

section of this opinion explains why certification of these two issues is proper.

In the second section, I address the Supreme Court’s recent decision in Hall and why it

represents a paradigm shift that undermines prior state and federal opinions about Mr. Hill’s

intellectual-disability claim. I read Hall to support the conclusion that Georgia’s requirement

that death-row inmates prove they are intellectually disabled beyond a reasonable doubt is

unconstitutional because it “creates an unacceptable risk that persons with intellectual disability

will be executed.” Hall, 572 U.S. at ___, 134 S. Ct. at 1990.

I.

1

In Sawyer, a case decided before AEDPA became law, the Supreme Court considered

“the standard for determining whether a petitioner bringing a successive, abusive, or defaulted

federal habeas claim has shown he is ‘actually innocent’ of the death penalty to which he has

been sentenced so that the [federal habeas] court may reach the merits of the claim.” 505 U.S. at

335, 112 S. Ct. at 2517. The Court held “to show ‘actual innocence’ one must show by clear and

convincing evidence that, but for a constitutional error, no reasonable juror would have found the

petitioner eligible for the death penalty under the applicable state law.” Id. at 336, 112 S. Ct. at

2517.

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Under AEDPA, our denial of Mr. Hill’s application to file a second or successive habeas

petition cannot be appealed. 28 U.S.C. § 2244(b)(3)(E). That means the only method available

to Mr. Hill to seek Supreme Court review of our order denying him relief is by way of

certification under 28 U.S.C. § 1254(2). That statute provides:

Cases in the courts of appeals may be reviewed by the Supreme Court by the

following methods:

(1) By writ of certiorari granted upon the petition of any party to

any civil or criminal case, before or after rendition of judgment or

decree;

(2) By certification at any time by a court of appeals of any

question of law in any civil or criminal case as to which

instructions are desired, and upon such certification the Supreme

Court may give binding instructions or require the entire record to

be sent up for decision of the entire matter in controversy.

28 U.S.C. § 1254.

I am well aware that the Supreme Court has discouraged use of this certification

procedure. The Court has instructed us that the certification procedure is proper only in “rare

instances.” See Wisniewski v. United States, 353 U.S. 901, 902, 77 S. Ct. 633, 634 (1957).

Indeed, I am aware of only four cases in which the Supreme Court has accepted certified

questions from Courts of Appeals in the last sixty years. See Iran Nat’l Airlines Corp. v.

Marschalk Co., 453 U.S. 919, 101 S. Ct. 3154 (1981); Moody v. Albemarle Paper Co., 417 U.S.

622, 94 S. Ct. 2513 (1974); United States v. Barnett, 376 U.S. 681, 84 S. Ct. 984 (1964); United

States v. Rice, 327 U.S. 742, 66 S. Ct. 835 (1946).

However, I believe the two issues I mentioned are of exceptional importance, well

beyond mere “internal difficulties” of this Circuit, Wisniewski, 353 U.S. at 902, and we need

Supreme Court guidance. First, the Courts of Appeals are now divided on the question of

whether Sawyer’s holding that an inmate can be innocent of the death penalty survived

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AEDPA’s gatekeeping provisions. Compare In re Hill, 715 F.3d at 301 (holding that post-

AEDPA, “there is no Sawyer exception to the bar on second or successive habeas corpus

petitions for claims asserting ‘actual innocence of the death penalty’”), and Hope v. United

States, 108 F.3d 119, 120 (7th Cir. 1997) (holding that the Sawyer exception did not survive

AEDPA), with Thompson v. Calderon, 151 F.3d 918, 924 & n.4 (9th Cir. 1998) (holding that the

Sawyer exception survived AEDPA); see also LaFevers v. Gibson, 238 F.3d 1263, 1267 (10th

Cir. 2001) (noting “there is a split among the . . . circuits that have addressed the question,” but

not resolving the “difficult question because even assuming § 2244(b)(2)(B)(ii) does encompass

challenges to a death sentence,” the petitioner’s claim would fail). I understand the Supreme

Court itself to have indicated, in the context of reviewing an appeals court’s recall of its mandate,

that Sawyer’s “miscarriage of justice standard is altogether consistent . . . with AEDPA’s central

concern that the merits of concluded criminal proceedings not be revisited in the absence of a

strong showing of actual innocence.” Calderon v. Thompson, 523 U.S. 538, 558, 118 S. Ct.

1489, 1502 (1998).

Certification of this question would give the Supreme Court a way to bring consistency to

an area of the law which otherwise evades its review. 2 Indeed, in Felker v. Turpin, 518 U.S.

651, 116 S. Ct. 2333 (1996), Justice Souter, joined by Justices Stevens and Breyer, wrote a

concurring opinion observing that although AEDPA precluded certiorari review over a Court of

Appeals’ “‘gatekeeper’ determination,” the “statute’s text does not necessarily foreclose all of

[the Supreme Court’s] appellate jurisdiction” given the statutory authority to certify questions

2

I recognize that the Supreme Court could have also granted Mr. Hill’s petition for writ

of certiorari from the state court’s denial of his successive state habeas corpus petition.

However, the issue of whether Sawyer’s equitable exception survived AEDPA’s gatekeeping

provisions cannot travel to the Court by that route. By definition, AEDPA’s restrictions on

second and successive habeas corpus applications apply only to federal courts.

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under § 1254(2). Id. at 666–67, 116 S. Ct. at 2341 (Souter, J., concurring). Justice Souter added,

“if it should later turn out that statutory avenues other than certiorari for reviewing a gatekeeping

determination were closed, the question whether the statute exceeded Congress’s Exceptions

Clause power would be open. The question could arise if the courts of appeals adopted divergent

interpretations of the gatekeeper standard.” Id. at 667, 116 S. Ct. at 2342 (footnote omitted). It

has now come to pass that the Courts of Appeals have adopted divergent interpretations of the

AEDPA’s gatekeeper standard on the question of Sawyer’s actual innocence of the death penalty

exception.

Second, only the Supreme Court can decide the question of whether Hall applies

retroactively to cases on collateral review. See Tyler v. Cain, 533 U.S. 656, 662, 121 S. Ct.

2478, 2482 (2001) (holding that § 2244(b)(2)(A)’s retroactivity requirement “is satisfied only if

[the Supreme Court] has held that the new rule is retroactively applicable to cases on collateral

review”). If there had been no other contrary legal developments since we decided In re Henry, I

would not think certification of this retroactivity question appropriate. But there has been a

significant development that I cannot ignore. In October 2014, the Supreme Court granted a writ

of certiorari to a successive capital habeas petitioner, vacated the Florida Supreme Court’s

judgment, and remanded for further consideration in light of Hall. See Haliburton v. Florida,

___ U.S. ___, 135 S. Ct. 178 (2014). I can think of no reason for the Supreme Court to remand

a case like Haliburton, arising as it did in the context of a successive habeas application, unless it

intended for Hall to apply retroactively. The Supreme Court does not “create new constitutional

rules of criminal procedure unless those rules would be applied retroactively to all defendants on

collateral review through one of . . . two exceptions.” Teague v. Lane, 489 U.S. 288, 316, 301 S.

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Ct. 1060, 1078 (1989) (plurality opinion). Remanding Haliburton in light of Hall signals that the

Supreme Court intended for Hall to apply retroactively to all cases on collateral review.

The Majority emphasizes the extensive process given to Mr. Hill by both federal and

state courts over the years. Right they are, but Mr. Hill’s case is not unique in that regard. 3 For

example, Mr. Haliburton’s conviction for a murder committed in 1981 became final for the

purposes of retroactivity analysis on June 28, 1991, when the United States Supreme Court

denied certiorari review from his direct appeal. See Haliburton v. State, 561 So. 2d 248, 249

(Fla. 1990), cert denied sub nom. Haliburton v. Florida, 501 U.S. 1259, 111 S. Ct. 2910 (1991).

The Florida Supreme Court then affirmed the denial of state postconviction relief in 1997, see

Haliburton v. Singletary, 691 So. 2d 466 (Fla. 1997), and this Court originally affirmed the

denial of federal habeas corpus relief in 2003, see Haliburton v. Sec’y for Dep’t of Corr., 342

F.3d 1233 (11th Cir. 2003). If the Supreme Court viewed Hall as sufficient to trump the interests

in finality that existed in Haliburton—a case that became final long before Mr. Hill’s—surely the

Supreme Court’s actions speak volumes about Hall’s retroactivity. The Majority truly has

labored for years over Mr. Hill’s case. That is because what matters is not the extent of the

process he gets, but rather arriving at the correct answers to the difficult questions he raises.

II.

This Court has held, and the parties do not dispute, that Hall announced a new rule of

constitutional law. See In re Henry, 757 F.3d at 1158 (“Hall did indeed announce a new rule of

constitutional law.”). It is well settled that “a case announces a new rule of constitutional law

when it breaks new ground or imposes a new obligation on the States or the Federal

government.” Id. (quoting Teague, 489 U.S. at 301, 109 S. Ct. at 1070). As In re Henry

3

I have attached a chart to the end of my dissent comparing some of the relevant dates

between Messrs. Hill, Haliburton, and Hall.

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explained: “For the first time in Hall, the Supreme Court imposed a new obligation on the states

not dictated by Atkins [v. Virginia, 536 U.S. 304, 122 S. Ct. 2242 (2002)] because Hall restricted

the states’ previously recognized power to set procedures governing the execution of the

intellectually disabled.” 757 F.3d at 1158–59.

I read Hall as a paradigm shift in the basic assumptions about how much discretion states

have to define intellectual disability and to craft procedures to enforce the Eighth and Fourteenth

Amendments’ prohibition against executing people who are intellectually disabled. 4 In 2002,

Atkins left to individual states “the task of developing appropriate ways to enforce the

constitutional restriction.” 536 U.S. at 317, 122 S. Ct. at 2250 (quotation omitted). Seven years

later, the Supreme Court reaffirmed that Atkins “did not provide definitive procedural or

substantive guides for determining when a person who claims mental retardation will be so

impaired as to fall within Atkins’ compass.” Bobby v. Bies, 556 U.S. 825, 831, 129 S. Ct. 2145,

2150 (2009) (alteration and quotation marks omitted). Indeed, when rejecting Mr. Hill’s

challenge to Georgia’s unique beyond-a-reasonable-doubt standard of proof, both the Georgia

Supreme Court and this Court relied on the language from Atkins that gave states discretion to

develop “appropriate ways” to protect the constitutional right. See Hill, 662 F.3d at 1347–48

(rejecting Mr. Hill’s argument that Georgia’s beyond-a-reasonable-doubt standard was contrary

to Atkins because Atkins “expressly left the procedures” for determining who was intellectually

disabled to the states (citing Atkins, 536 U.S. at 317, 122 S. Ct. at 2250)); Head v. Hill, 587

4

The Majority disagrees with my reference to Hall as a “paradigm shift” and

“revolutionary.” See Majority Op. at 19. However, it was this Court’s decision in In re Henry

that recognized Hall was a new rule because it “imposed a new obligation on the states not

dictated by Atkins” for the first time. 757 F.3d at 1158. In re Henry further explained: “Justice

Kennedy’s Hall opinion explained that the basis for its holding stretched beyond Atkins alone:

‘[T]he precedents of this Court ‘give us essential instruction,’ . . . but the inquiry must go

further.’” 757 F.3d at 1159 (citations omitted and alterations adopted).

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S.E.2d 613, 620 (Ga. 2003) (“[I]n Atkins, the Supreme Court of the United States made clear

that it was entrusting the states with the power to develop the procedures necessary to enforce the

newly recognized federal constitutional ban on the execution of the [intellectually disabled].”

(citing Atkins, 536 U.S. at 317, 122 S. Ct. at 2250)). In other words, the assumption that states

were free to come up with “appropriate ways” to define intellectual disability was a primary and

indispensable part of the state court’s and this Court’s rejection of Mr. Hill’s challenge to

Georgia’s beyond-a-reasonable-doubt standard of proof.

The revolutionary thing about Hall is its holding that “Atkins did not give the States

unfettered discretion to define the full scope of the constitutional protection [against executing

the intellectually disabled].” 572 U.S. at ___, 134 S. Ct. at 1998. “If the States were to have

complete autonomy to define intellectual disability as they wished, the Court’s decision in Atkins

could become a nullity, and the Eighth Amendment’s protection of human dignity would not

become a reality.” Id. at ___, 134 S. Ct. at 1999. The Court emphasized the significance of its

holding in Hall as maintaining “our Nation’s commitment to dignity and its duty to teach human

decency as the mark of a civilized world.” Id. at ___, 134 S. Ct. at 2001.

Because Hall repudiated a basic assumption about Atkins that this Court relied on in its

earlier rulings in Mr. Hill’s case, I believe the law-of-the-case doctrine does not apply to Mr.

Hill’s current application based on two exceptions to the law-of-the-case rule. First, Hall is

“controlling authority [that] has since made a contrary decision of law applicable to th[e] issue.”

Culpepper v. Irwin Mortg. Corp., 491 F.3d 1260, 1271 (11th Cir. 2007). Second, Hall

establishes that the approach taken by our en banc Hill opinion was “clearly erroneous,” such

that continuing to apply it “would work manifest injustice.” Id. The assumption in Hill, 662

F.3d at 1347, that states have unfettered discretion to enforce the ban against executing the

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intellectually disabled is a legal error that is beyond debate in light of Hall. The manifest

injustice of applying the law-of-the case doctrine to Mr. Hill is obvious. Doing so would

sanction the execution of a person who mental health experts unanimously agree is intellectually

disabled. See Hall, 572 U.S. at ___, 134 S. Ct. at 1992 (“[T]o impose the harshest of

punishments on an intellectually disabled person violates his or her inherent dignity as a human

being.”).

And there are other aspects of Hall that demonstrate it worked a paradigm shift as to our

understanding of the states’ role in protecting the intellectually disabled from wrongful

execution. Hall acknowledged that “[t]he States are laboratories for experimentation, but those

experiments may not deny the basic dignity the Constitution protects.” Id. at ___, 134 S. Ct. at

2001. In this vein, Hall emphasized that the risk of error in how a state decides whether an

inmate is intellectually disabled is critical to the analysis about whether that decision is

constitutional. Hall struck down Florida’s definition of intellectual disability, which “require[d]

an IQ test score of 70 or less,” because it was a “rigid rule” that “creates an unacceptable risk

that persons with intellectual disability will be executed, and thus is unconstitutional.” Id. at

___, 134 S. Ct. at 1990. In doing so, the Supreme Court stressed that one of the reasons for a

categorical rule making intellectually disabled offenders ineligible for the death penalty is that

such “persons face ‘a special risk of wrongful execution.’” Id. at ___, 134 S. Ct. at 1993

(quoting Atkins, 536 U.S. at 320–21, 122 S. Ct. at 2252). The clear implication of Hall is that

states may not employ intellectual disability definitions or procedures that “create[] an

unacceptable risk that persons with intellectual disability will be executed.” Id. at ___, 134 S.

Ct. at 1990.

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Notably, Hall’s conclusion that Florida’s rigid rule was unconstitutional was based, in

part, on the “views of medical experts.” Id. at ___, 134 S. Ct. at 2000. Of course “[t]hese views

[did] not dictate the Court’s decision, yet the Court d[id] not disregard these informed

assessments.” Id. (citing Kansas v. Crane, 534 U.S. 407, 413, 122 S. Ct. 867, 871 (2002) (“[T]he

science of psychiatry . . . informs but does not control ultimate legal determinations . . . .”)).

“Courts must recognize, as does the medical community, that the IQ test is imprecise.” Hall, 572

U.S. at ___, 134 S. Ct. at 2001. Hall reasoned that “[a] State that ignores the inherent

imprecision of these tests risks executing a person who suffers from intellectual disability.” Id.

Likewise, Mr. Hill’s case shows how Georgia’s standard also unreasonably discounts medical

determinations that are made to the highest degree of medical certainty, yet may not be beyond a

reasonable doubt.

The logic and reasoning of Hall lead me to the conclusion that Georgia’s singular

beyond-a-reasonable-doubt standard of proof, like Florida’s rigid IQ cut-off score, must not

“create[] an unacceptable risk that persons with intellectual disability will be executed” in order

to pass constitutional muster. Id. at ___, 134 S. Ct. at 1990. Georgia’s beyond-a-reasonable-

doubt standard, like Florida’s IQ cut-off, is properly understood as a substantive aspect of

Georgia’s definition of intellectual disability. See Medronic, Inc. v. Mirowski Family Ventures,

LLC, ___ U.S. ___, ___, 134 S. Ct. 843, 849 (2014) (noting “that the burden of proof is a

substantive aspect of a claim” (quotation marks omitted)). That being the case, it “serves to

allocate the risk of error between the litigants.” Addington v. Texas, 441 U.S. 418, 423, 99 S.

Ct. 1804, 1807 (1979). And the problem is that Georgia’s standard “allocates almost the entire

risk of error to the offender while leaving virtually none of it with the State.” Hill, 662 F.3d at

1372 (Barkett, J., dissenting). In this way, it creates an unacceptable risk of wrongful execution

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and denies offenders, like Mr. Hill, a “fair opportunity to show” they are not eligible for the

death penalty based on their intellectual disability.

As this discussion reveals, my reading of Hall leads me to a very different conclusion

than that of the Majority about how it impacts Georgia’s adjudication of intellectual disability

claims. Georgia’s statutory definition of intellectual disability is almost identical to Florida’s.

Georgia’s statute provides: “‘Mentally retarded’ means having significantly subaverage general

intellectual functioning resulting in or associated with impairments in adaptive behavior which

manifested during the developmental period.” O.C.G.A. § 17-7-131(a)(3). Florida’s statute

provides, in relevant part:

As used in this section, the term “intellectually disabled” or “intellectual

disability” means significantly subaverage general intellectual functioning

existing concurrently with deficits in adaptive behavior and manifested during the

period from conception to age 18. The term “significantly subaverage general

intellectual functioning,” for the purpose of this section, means performance that

is two or more standard deviations from the mean score on a standardized

intelligence test specified in the rules of the Agency for Persons with Disabilities.

The term “adaptive behavior,” for the purpose of this definition, means the

effectiveness or degree with which an individual meets the standards of personal

independence and social responsibility expected of his or her age, cultural group,

and community.

Fla. Stat. § 921.137. To the extent that the Georgia and Florida statutes require not only

subaverage intellectual functioning, but also significant limitations in adaptive skills such as

communication, self-care, and self-direction that became manifest before the age of eighteen,

both are consistent with the “clinical definitions” of intellectual disability referred to by the

Supreme Court in Atkins. 536 U.S. at 318, 122 S. Ct. at 2251; see also id. at 309 n.3, 122 S. Ct.

at 2245 n.3 (citing definitions of intellectual disability from the American Association of Mental

Retardation (AAMR), Mental Retardation: Definition, Classification, and Systems of Supports 5

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Case: 15-10192 Date Filed: 01/26/2015 Page: 31 of 33

(9th ed. 1992) and the American Psychiatric Association, Diagnostic and Statistical Manual of

Mental Disorders 41 (4th ed. 2000)). 5

There is one important difference between Georgia’s and Florida’s system for

determining who is not eligible for execution based on intellectual disability. Under Florida’s

definition of intellectual disability, Mr. Hill would likely have been considered intellectually

disabled, even before the Supreme Court decided Hall. Mr. Hill’s state habeas corpus judge

found beyond a reasonable doubt that Mr. Hill had qualifying IQ scores showing significantly

subaverage general intellectual functioning. Of course that same judge also found that Mr. Hill

failed to prove his adaptive skills deficits beyond a reasonable doubt, but he did find Mr. Hill

showed adaptive deficits and was intellectually disabled by a preponderance of the evidence.

Unlike Georgia, Florida only requires offenders to prove intellectual disability by clear and

convincing evidence, not beyond a reasonable doubt. See State v. Herring, 76 So. 3d 891, 895

(Fla. 2011) (“[A] defendant must prove each of the three elements [of intellectual disability] by

clear and convincing evidence.”). But for Georgia’s uniquely high burden for proving

intellectual disability, I have no question that Mr. Hill would have been found intellectually

disabled in state habeas corpus proceedings and he would not be facing his execution tomorrow.

No one disputes that every mental health expert who has ever evaluated Mr. Hill, now including

the state’s three experts, has concluded he is intellectually disabled. The fact that there is now

unanimity among these experts makes it all the more striking to recall that even before this

5

The AAMR is now known as the American Association on Intellectual and

Developmental Disabilities (AAIDD). Florida’s current definition of intellectual disability

tracks very closely the AAIDD’s most recent definition of intellectual disability. Compare Fla.

Stat. § 921.137(1), with AAIDD, Intellectual Disability: Definition, Classification and Systems

of Supports 5 (11th ed. 2011) (“Intellectual disability is characterized by significant limitations

both in intellectual functioning and in adaptive behavior as expressed in conceptual, social, and

practical adaptive skills. This disability originates before age 18.”).

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unanimity existed, the state habeas court made a finding that Mr. Hill had proved, beyond a

reasonable doubt, that his IQ showed he had significantly subaverage intellectual functioning.

So it was only on this slender aspect of the intellectual disability determination that Mr. Hill

failed to meet Georgia’s beyond-a-reasonable-doubt standard.

I respectfully dissent to the denial of the certification of questions.

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APPENDIX A

Petitioner Date of Offense Date that Date that Court of Date that U.S.

Conviction Appeals Affirmed Supreme Court

Became Final 6 Denial of § 2254 Intervened

Federal Habeas

Petition

Warren Hill Aug. 17, 1990 7 Jan. 10, 1994 8 Nov. 22, 2011 9 N/A

Freddie Hall Feb. 21, 1978 10 Jan. 13, 1982 11 Nov. 16, 1986 12 May 27, 2014 13

Jerry Haliburton Aug. 9, 1981 14 Jun. 21, 1991 15 Aug. 21, 2003 16 Oct. 6, 2014 17

6

A case becomes final on direct appeal when the Supreme Court denies a petition for

writ of certiorari or, if none is filed, when the time expires to file such a petition. See McCloud v.

Hooks, 560 F.3d 1223, 1227 (11th Cir. 2009).

7

Hill, 587 S.E. 2d at 618.

8

Hill v. Georgia, 510 U.S. 1066, 114 S. Ct. 745 (1994).

9

Hill, 662 F.3d at 1335.

10

Hall v. State, 403 So. 2d 1319, 1320 (Fla. 1981).

11

On October 15, 1981, the Florida Supreme Court denied Mr. Hall’s petition for

rehearing its decision affirming his conviction and death sentence. Hall, 403 So. 2d at 1319. Mr.

Hall’s time for filing a petition for certiorari in the United States Supreme Court expired on

January 13, 1982. See U.S. Sup. Ct. R. 13(1).

12

Hall v. Wainwright, 805 F.2d 945 (11th Cir. 1986).

13

Hall, 572 U.S. at ___, 134 S. Ct. at 1986.

14

Haliburton v. State, 476 So. 2d 192, 193 (Fla. 1985), cert. granted, judgment vacated

sub nom. Florida v. Haliburton, 474 U.S. 1078, 106 S. Ct. 1452 (1986).

15

Haliburton v. Florida, 501 U.S. 1259, 111 S. Ct. 2910 (1991).

16

Haliburton v. Sec’y for Dep’t of Corr., 342 F.3d at 1233.

17

Haliburton, ___ U.S. at ___, 135 S. Ct. at 178 (granting petition, vacating judgment,

and remanding in light of Hall).

33